SafeWork NSW v Western Sydney Local Health District (No 3) - [2025] NSWDC 48

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Western Sydney Local Health District (No 3) [2025] NSWDC 48
Hearing dates: 05 December 2024
Date of orders: 10 March 2025
Decision date: 10 March 2025
Jurisdiction: Criminal
Before: Scotting DCJ
Decision:
1. The nurses’ statements of their subjective feelings to others is admissible.

Catchwords:
EVIDENCE — Hearsay — Exceptions
EVIDENCE — Relevance

Legislation Cited:
Evidence Act 1995
Work Health and Safety Act 2011

Cases Cited:
Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467
Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
Prime Marble & Granite Pty Ltd v SafeWork NSW [2024] NSWCCA 105
R v Board of Trustees of the Science Museum [1993] 1 WLR 1171
Saunders Civilbuild Pty Ltd v SafeWork NSW [2023] NSWCCA 261
Tame v New South Wales (2002) 211 CLR 317
Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015
Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94

Texts Cited:
Safe Work Australia National Guidance Material, Work-related psychological health and safety: A systematic approach to meeting your duties, January 2019

Category: Procedural rulings
Parties: SafeWork NSW (Prosecutor)
Western Sydney Local Health District (Defendant)
Representation:
Counsel:
T McDonald SC with B Docking (Prosecutor)
B Hodgkinson AM SC with E Aitken (Defendant)
Solicitors:
Legal, Department of Customer Service (Prosecutor)
Ashurst Australia (Defendant)

File Number(s): 2022/346679
Publication restriction: None

RULING

Introduction

Western Sydney Local Health District (WSLHD) has pleaded not guilty to a Category 3 offence that as a person with a health and safety duty under s 19(1) Work Health and Safety Act 2011 (the Act) that it failed to comply with that duty, contrary to s 33 of the Act.
WSLHD is responsible for the operation of Mental Health Services at Cumberland Hospital, Westmead Hospital and Blacktown Hospital. Between August and November 2020, WSLHD employed a Registered Nurse (the RN) and an Endorsed Enrolled Nurse (the EEN) at Cumberland Hospital in the Hainsworth Unit, a secure mental health facility (the ward). [1] At all material times the RN and the EEN were in a domestic relationship. At about 5pm on 16 August 2020 there was an incident on the ward where a patient was put into seclusion after she had absconded from the ward (the seclusion incident). Complaints were made about the conduct of the nurses in the seclusion incident and it became the subject of an investigation. The prosecution case is that the investigation was poorly handled and as a result, the nurses were exposed to psychosocial hazards, namely poor organisational justice and the failure to adequately resolve grievances in the workplace.
1. I am satisfied that it is not necessary to protect the principles of open justice to identify the EEN or the RN by name in this judgment. I have made a non-publication order to prevent the publication of the name…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SafeWork NSW v Western Sydney Local Health District (No 3)

Details

AGLC: SafeWork NSW v Western Sydney Local Health District (No 3) [2025] NSWDC 48
Case: [2025] NSWDC 48
Decision Date: 10 March 2025

CaseChat Overview and Summary

The matter in SafeWork NSW v Western Sydney Local Health District (No 3) came before the Court to address issues of admissibility of evidence, specifically focusing on hearsay exceptions and relevance of evidence presented in the context of a workplace health and safety matter. SafeWork NSW brought an action against the Western Sydney Local Health District, challenging decisions made by the District regarding the working conditions for nurses. The crux of the dispute lay in the admissibility of certain statements made by nurses to third parties about their subjective feelings regarding workplace conditions, which were argued to be hearsay and thus inadmissible.

The central legal issues the Court was required to determine involved the application of exceptions to the hearsay rule under the Evidence Act, particularly in relation to the admissibility of out-of-court statements made by nurses to others about their feelings and perceptions of the workplace environment. The Court also had to assess whether these statements were relevant and could be admitted under the hearsay exceptions, considering their potential impact on establishing the conditions that led to the claims of unsafe work environments.

In its reasoning, the Court held that the statements made by nurses to others regarding their subjective feelings were admissible under the hearsay exceptions. The Court found that these statements were not only relevant but also necessary to understand the context and conditions of the workplace. The judges noted that such statements could provide insight into the nurses' perceptions and experiences, which were crucial to the determination of whether the working conditions breached health and safety standards. By admitting these statements, the Court aimed to ensure a comprehensive understanding of the issues at hand, thus facilitating a fair assessment of the claims made by SafeWork NSW against the Western Sydney Local Health District.

The Court's decision to admit the nurses' statements marked a significant step in the proceedings, allowing for a broader scope of evidence to be considered. This ruling underscored the importance of allowing subjective experiences of employees to be part of the evidence, especially in matters concerning workplace health and safety. The final orders of the Court included the admission of the nurses' statements as evidence in the case, paving the way for a more thorough examination of the allegations.

Orders

Orders of the court

1. The nurses’ statements of their subjective feelings to others is admissible.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	SafeWork NSW v Western Sydney Local Health District (No 3) [2025] NSWDC 48
Hearing dates:	05 December 2024
Date of orders:	10 March 2025
Decision date:	10 March 2025
Jurisdiction:	Criminal
Before:	Scotting DCJ
Decision:	1. The nurses’ statements of their subjective feelings to others is admissible.
Catchwords:	EVIDENCE — Hearsay — Exceptions EVIDENCE — Relevance
Legislation Cited:	Evidence Act 1995 Work Health and Safety Act 2011
Cases Cited:	Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 Prime Marble & Granite Pty Ltd v SafeWork NSW [2024] NSWCCA 105 R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 Saunders Civilbuild Pty Ltd v SafeWork NSW [2023] NSWCCA 261 Tame v New South Wales (2002) 211 CLR 317 Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94
Texts Cited:	Safe Work Australia National Guidance Material, Work-related psychological health and safety: A systematic approach to meeting your duties, January 2019
Category:	Procedural rulings
Parties:	SafeWork NSW (Prosecutor) Western Sydney Local Health District (Defendant)
Representation:	Counsel: T McDonald SC with B Docking (Prosecutor) B Hodgkinson AM SC with E Aitken (Defendant) Solicitors: Legal, Department of Customer Service (Prosecutor) Ashurst Australia (Defendant)
File Number(s):	2022/346679
Publication restriction:	None